The Country of Origin Principle

GESAC recognises that the objective of the Commission’s proposed Regulation is to facilitate wider cross-border access to the online ancillary services of broadcasting organisations but considers that the introduction of the country of origin principle (CoO) is an inappropriate measure to attain the desired objective and poses high risks for the protection of authors’ rights and their efficient exercise, without any clear proven benefit for consumers.

Extending or introducing the CoO principle would in itself not facilitate wider cross-border access, since it only establishes where the relevant act of transmission takes place, which has an impact on the applicable law for the purposes of licensing.

The CoO principle does not address the primary factors affecting multi-territorial online exploitations: the fragmentation of repertoires, and the economic and cultural realities of the market. Furthermore, by itself, it could in fact undermine the essential freedom of rights holders to determine the geographical scope of their licences, if such freedom is not clearly mentioned alongside.

In its current form in the Commission's proposal, the definition used for an ‘online ancillary service’ is very close to that of Article 32 of Directive 2014/26/EC, which has already been applied in practice by GESAC members based on the GESAC/EBU/ICMP/ECSA Recommendation and reflects what should be agreed by the rights holders and broadcasting organisations through voluntary re-aggregation of the rights for such a purpose.

If not completely deleted, the reach of this intervention should remain limited to the online ancillary services as defined in Art 1(a) of the Draft Broadcasting Regulation: any further extension would have a detrimental impact

The provisions of the Draft Broadcasting Regulation fail to address the chronic problems raised by the satellite provisions of Directive 93/83/EEC (SatCab Directive) and its CoO principle in terms of the rules of establishment and determination of the payments due for such exploitations. An extension of those rules and principles to cover online ancillary services could expand these problems to a new area, without dealing with them in the first place.

Article 2.2 is not sufficiently clear to avoid abuse of the country of origin principle, since it remains possible to use this provision to push creators’ revenues down

If not properly amended, the current proposal would expand abusive practices by certain broadcasters that avoid the appropriate licensing fees for the entire or targeted territory of their licence, by escaping from licensing obligations or by reducing the amounts paid in a specific country. More specifically, this can happen when a broadcaster is established in country A, but its services are available only in country B, in the language of country B, and with programming and advertising targeted at country B. This will enable the broadcasted to avoid or reduce its liabilities, including copyright, in country B.

If the necessary modifications and a clearer consideration of the usage taking place in the relevant territories are not included to Article 2 of the Draft Regulation, even the current limited scope could have a potential detrimental impact. The appropriate changes would help establish a basis for wider access to broadcast programmes through voluntary agreements, and for ensuring the appropriate remuneration of authors and composers.